Citation Nr: 1629736 Decision Date: 07/26/16 Archive Date: 08/04/16 DOCKET NO. 14-09 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, and if so, whether the reopened claim should be granted. ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel INTRODUCTION The Veteran had active military service from June 1970 to October 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. As will be discussed in further detail in the following decision, the Board is granting the new and material aspect of this appeal. The underlying issue for service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Although the Veteran appealed a November 1992 rating decision that denied service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, the Veteran then, in an October 1995 written statement, withdrew this claim from appellate review prior to a Board decision in the matter. 2. The evidence associated with the file after the November 1992 rating action relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee. CONCLUSIONS OF LAW 1. The November 1992 rating decision denying service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1992). 2. New and material evidence has been received sufficient to reopen a claim for service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, given the favorable disposition of the actions here, which is not prejudicial to the Veteran, no further action with respect to the issue granted herein is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Claim to Reopen Service Connection A claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). However, if new and material evidence is received with respect to a disallowed claim, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014). New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2015); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). A November 1992 rating decision denied service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee based on an absence of a finding of a hip disability at a September 1992 VA examination. The examiner opined that he did not "feel" the Veteran's complaints of intermittent hip pain were related to the knee condition. Although the Veteran perfected a timely appeal with respect to this denial, he later, in an October 1995 written statement, withdrew this claim from appellate review prior to a Board decision in this matter. As such, the November 1992 decision remains final. Pertinent evidence of record at the time of the November 1992 rating decision included the Veteran's service treatment records (STRs), which showed that he did not have hip-related issues; post-service treatment records, which failed to show any hip complaints were related to the Veteran's service-connected left knee condition; and as mentioned above, a September 1992 VA examination, in which the examiner found that the Veteran did not have a hip disability. Relevant evidence received since the November 1992 rating decision includes a November 1, 2011 X-ray report of the left hip, which shows that the Veteran has minimal osteoarthritic spurring about the acetabulum, indicating minimal degenerative changes about the hip. This additional evidence is new and material. This document is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee. Thus, a reopening of the claim for service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, is warranted. ORDER New and material evidence has been received, and reopening of the claim for service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee, to this extent only, is granted. REMAND Regrettably, the Board finds that additional development is required before the remaining matter on appeal is decided. The Veteran reports that he has a left hip disability due to his altered gait that is caused by the service-connected internal derangement of the left knee. The Board also acknowledges the Veteran's statements, at the September 1992 VA examination, that the examiner had found that the Veteran's left hip disability is secondary to the service-connected internal derangement of the left knee. However, the examiner clarified his findings two days after the examination report was dictated and, in doing so, specifically indicated that the Veteran's left hip pain secondary to left knee condition was "alleged" and that he (the examiner) could not make a diagnosis to explain the alleged hip pain. Ultimately, the examiner opined that he did not "feel" that the Veteran's left hip pain was related to the knee condition. As such, the Board finds the Veteran's argument to be unsubstantiated. At the November 1, 2011 VA examination, the examiner found the Veteran did not have a hip condition and also indicated after imaging studies of the hip was performed that there was no degenerative or traumatic arthritis documented in the left hip. As a result, he opined that the claimed left hip disability is less likely than not related to, secondary to, or a result of the knee condition. However, there appears to be conflicting evidence because, as indicated above, the Veteran was diagnosed with arthritis in the left hip in a November 1, 2011 X-ray report. Due to the examiner's failure to consider the November 1, 2011 X-ray report, the Board finds his opinion to be inadequate for adjudication purposes. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. Thus, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his left hip disability. Accordingly, the case is REMANDED for the following action: 1. Issue a Veterans Claims Assistance Act of 2000 notice letter pertaining to the claim for service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee. 2. Identify and obtain any outstanding VA and private treatment records not already of record in the claims file. Any additional treatment records identified by the Veteran should be obtained and associated with his claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. He is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 3. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined him, to determine the nature and etiology of his left hip disability. The claims file must be made available to, and reviewed in its entirety by, the examiner. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hip disability is etiologically related to his active service or had its onset within one year of his separation from active service. The examiner should also opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hip disability was caused or chronically worsened by the service-connected internal derangement of the left knee, to include altered gait/body mechanics resulting from this service-connected disability. The rationale for all opinions expressed must be provided. 4. Then, readjudicate the issue of entitlement to service connection for a left hip disability, to include as secondary to the service-connected internal derangement of the left knee. If the decision is adverse, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). He is also advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the United States Court of Appeals for Veterans Claims be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs